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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, October 03, 2005 ::
    Well, so it really is Harriet Miers. My first take, before consulting the blogosphere:

    Conservatives were not as up-in-arms over Miers in advance as they were over Gonzalez, but, if I read the blogs correctly, that's because we thought the Miers rumor was a joke; or, if serious, then merely a red herring to distract the bookmakers.

    Now, she may actually be the best nominee since Thomas. Who knows? That Bush trusts her is a plus. But to turn to such a stealth nominee, when so much quality was available, and there are 55 Republicans in the Senate? If there was ever a time to appoint Jones or Garza or Luttig, it was now. Are we being asked to believe that the President had to go the way of stealth and cronyism in order to get a nominee through this Senate?

    To me, it's irrelevant that she has never been a judge. Neither had Frankfurter, Black, Jackson, or Rehnquist, among others. Nor am I disturbed that her resume is silver or bronze rather than gold. There are too darn many Harvard Law grads on the Court already (yes, I know Our Hero is one, and so is the new Chief), and the Yale-Harvard-Stanford stranglehold on the Court is unnecessary and perhaps harmful.

    No, my concern is not that there may now be an SMU grad on the Court. That's to the good. My concern is that open advocacy of conservative legal views is now a definite disqualifier for the Supreme Court, in a conservative administration that campaigned in part on putting more Scalias and Thomases on the Court, and with a 55-member GOP Senate conference. Whether you're in practice, in academia, or on a lower court, the crime of being conservative in a public place now means no one will appoint you to the Supreme Court. It's not even clear that Federalist Society membership will be tolerated when it comes to picking high Court nominees.

    Watch for the next generation of conservative legal thinkers to go silent on the big questions, leaving no indication of who they are, making no disciples, and forcing the next conservative administration -- if there ever is another one, which must now be considered in doubt -- to trust to sheer luck in finding them. Assuming, that is, that it even wants to find them.

    Let's see if anyone is more optimistic.

    Krempasky at Confirm Them says:
    We’ve got a lot to learn about SCOTUS nominee Harriet Miers. To hear the White House tell us, “With her distinguished career and extensive community involvement, Ms. Miers would bring a wealth of personal experience and diversity to the Supreme Court.”

    Diversity. Sure she does. In fact, she gives money to Republicans *and* Democrats.

    Mr. President, you’ve got some explaining to do. And please remember - we’ve been defending you these five years because of this moment.
    Otoh, Tim Carney tells us:
    In 1993, after the ABA had voted to adopt a pro-choice stance, the State Bar of Texas, under Miers’ leadership, fought to have the issue put to a vote of the full ABA membership. She said:

    “If we were going to take a position on this divisive issue, the members should have been able to vote.”

    In favor of democracy on the issue of abortion? Let’s hope she carries that through.
    And let's hope her objection to the ABA resolution was more than just procedural. In fairness, few lawyers got active in the fight against the ABA's pro-legal-abortion resolution unless they were themselves pro-life. It was a question of energy and motivation. So we can hope -- but we shouldn't have to.

    :: David M. Wagner 12:24 PM [+] ::

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